Exhibit 10.2
***Text Omitted and Filed
Separately
with the Securities and
Exchange Commission.
Confidential Treatment
Requested
Under 17 C.F.R. Sections
200.80(b)(4)
and 240.24b-2.
Execution
Copy
SECOND
AMENDMENT
TO
COLLABORATIVE
RESEARCH, DEVELOPMENT, COMMERCIALIZATION
AND LICENSE AGREEMENT
This Second Amendment is entered into as of
April 24, 2007 (“Second Amendment Effective Date”), by
and between Senomyx, Inc. (“Senomyx”) and
Ajinomoto Co., Inc. (“Ajinomoto”).
Capitalized terms
used herein without definition shall have the meaning provided
therefor in the First Collaboration Agreement (as defined
below).
BACKGROUND
WHEREAS, Senomyx and Ajinomoto have previously
entered into that certain Collaborative Research, Development,
Commercialization and License Agreement, effective March 23,
2006 ,
and that certain First
Amendment thereto , dated October 6, 2006 (collectively, the “First
Collaboration Agreement”) , for [ …***… ] Program
I and [ …***… ] Program II;
WHEREAS, the parties desire to expand the
licensed territory for Senomyx [ …***… ]
Compounds to include the United States of America and Canada;
and
WHEREAS, the parties have agreed to amend the
First Collaboration Agreement on the terms set forth herein and
enter into this Second Amendment for the purpose of documenting
such amendment as required by Section 17.7 of the First
Collaboration Agreement;
NOW, THEREFORE, in consideration of the
foregoing premises, the parties hereby agree to amend the First
Collaboration Agreement as follows.
AGREEMENT
1.
Appendix A to the First
Collaboration Agreement is hereby amended by either adding or
amending, as
provided below, the
following definitions:
“Asian Territory” means the
following Asian countries, which list will at all times be subject
to U.S. trade embargoes:
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“North American Territory”
means (i) the fifty
(50) States admitted to and constituting the United States of
America as of the date hereof and the District of Columbia but
excluding all other U.S. territories and protectorates, and (ii)
Canada.
“Territory” means the Asian
Territory and the North American Territory.
“ [ …***… ]
Field” means ( i ) with respect to the Asian Territory:
[ …***… ] Product Category I, [
…***… ] Product Category II, [
…***… ] Product Category III, [
…***… ] Product Category IV and [ …***… ] Product
Category V; and ( ii ) with respect to the North American Territory:
[ …***… ] Product Category VI.
“ [ …***… ]
Product Category VI” means with respect to Senomyx [
…***…
] Compounds [ …***… ]
Notwithstanding the foregoing, [ …***… ]
Product Category VI specifically excludes [
…***… ]
2.
Section 3.2 of the First Collaboration Agreement is hereby amended
as described below.
2.1
The first sentence of the first paragraph of Section 3.2 of the
First Collaboration Agreement is hereby amended and restated in its
entirety as follows:
“During the Collaborative Period, Senomyx
will collaborate with Ajinomoto in [ …***…
] Program I on (i) an Exclusive basis with respect to
[ …***… ] Product Category I in the Asian
Territory; (ii) a Co-Exclusive basis with respect to [
…***… ] Product Category II in the Asian
Territory; (iii) an Exclusive basis with respect to [
…***… ] Product Category III in the Asian
Territory; and ( iv) an Exclusive basis with respect to
[ …***… ] Product Category VI in the
North American Territory.”
2.2
The following sentences are hereby added to Section 3.2(B) of the
First Collaboration Agreement as follows:
“Senomyx agrees to provide, at no
additional cost, reasonable quantities to Ajinomoto of
[ …***… ] Senomyx [
…***… ] Compounds selected by Ajinomoto for
evaluation and product development in the North American
Territory.
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Notwithstanding the foregoing, Senomyx’s
obligation to provide such quantities with respect to the North
American Territory will end December 15, 2007.”
2.3
The first sentence of Section 3.2(C) of the First Collaboration
Agreement is hereby amended and restated in its entirety as
follows:
“For so long as Ajinomoto maintains its
Exclusive and Co-Exclusive licenses pursuant to Sections 8.1 and
8.2, Senomyx [ …***… ] ”
3.
Section 3.3 of the First Collaboration Agreement is hereby amended
as set forth below.
3.1
Each reference in the first sentence of Section 3.3 of the First
Collaboration Agreement to “Territory” is hereby
replaced with “Asian Territory”.
3.2
Each reference in Section 3.3(D) of the First Collaboration
Agreement to “Territory” is hereby replaced with
“Asian Territory”.
4.
Section 3.5 of the First Collaboration Agreement is hereby amended
as set forth below.
4.1
The words “to be sold in the Asian Territory” are
hereby added after the words “containing Senomyx [
…***… ] Compounds” in the second sentence
of Section 3.5(A) in the First Collaboration Agreement. In
addition, the following sentence is hereby added immediately after
the second sentence of such Section 3.5(A):
“Within a commercially reasonable time,
but no later than [ …***… ] of the Second
Amendment Effective Date, Ajinomoto will prepare a Product
Development Plan for [ …***… ] Products
containing Senomyx [ …***… ]
Compounds to be sold in the North American Territory for
approval by the Steering Committee.”
4.2
The following sentence is hereby added to Section 3.5(B) of the
First Collaboration Agreement:
“Ajinomoto will use commercially
reasonable efforts to commercialize [ …***…
] Product containing one or more Senomyx [
…***… ]
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Compounds in the North American Territory
within [ …***… ] of the Second Amendment
Effective Date.”
4.3
The last sentence of Section 3.5(B) of the First Collaboration
Agreement is hereby amended and restated in its entirety as
follows:
“Notwithstanding the foregoing, (i) any
accrued payment obligations of Ajinomoto (including payments under
Sections 7.6.1 and 7.6.1.1) will continue to be payable; (ii) such
payment obligations under Sections 7.6.1 with respect to (x)
[ …***… ] and/or (y) [
…***… ] will continue unless Ajinomoto has
discontinued all rights to all Senomyx [ …***…
] Compounds and all Selected Senomyx [
…***… ] Compounds in either (a) [
…***… ] and/or (b) [ …***…
] respectively; and (iii) such payment obligations under
Sections 7.6.1.1 with respect to the North American Territory will
continue unless Ajinomoto has discontinued all rights to all
Senomyx [ …***… ] Compounds in the North
American Territory.”
5.
Section 3.6(B) of the First Collaboration Agreement is hereby
amended and restated in its entirety as follows:
(B)
Reimbursement of the Cost of Filings to [
…***… ] . [
…***… ] will reimburse [
…***… ] for the costs associated with (i) the
regulatory filings in the Asian Territory for the Senomyx [
…***… ] Compounds and Selected Senomyx [
…***… ] Compounds made pursuant to Section
3.6(A) and (ii) the Regulatory Filing Data used in connection with
such filings; provided , however , that if any Third
Party licensee of [ …***… ] has the right
to [ …***… ] . For the avoidance of
doubt, with respect to Senomyx [ …***… ]
Compounds, [ …***… ]
6.
In consideration for the license grants to Senomyx [
…***… ] Compounds in the North American
Territory under this Second Amendment, Ajinomoto shall pay to
Senomyx a license fee of [ …***… ] within
[ …***… ] of the Second Amendment
Effective Date. Such license fee shall be non-refundable and
non-creditable.
7.
Section 7.4 of the First Collaboration Agreement is hereby amended
as set forth below:
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7.1
Milestone 3 is hereby amended and restated in its entirety as
follows:
“ Milestone 3 : [
…***… ] .”
7.2
A new Milestone 4 is hereby added as follows:
“ Milestone 4 : [
…***… ] .”
8.
Section 7.5 of the First Collaboration Agreement is hereby amended
as set forth below.
8.1
The first sentence of Section 7.5 of the First Collaboration
Agreement is hereby amended and restated as follows:
“Pursuant to the provisions of Section
7.7, Ajinomoto will pay to Senomyx a royalty of [
…***… ] on [ …***… ]
during the Royalty Term; provided , however , that
the royalty rate of the sales of [ …***…
] Products in [ …***… ] Product
Category III, [ …***… ] Product Category
IV, [ …***… ] within [
…***… ] Product Category V and [
…***… ] within [ …***…
] Product Category VI shall be [ …***…
] on [ …***… ] .”
8.2
The fifth sentence of Section 7.5 of the First Collaboration
Agreement is hereby amended and restated as follows:
“For the avoidance of doubt, (i) [
…***… ] Products in [ …***…
] Product Category III and [ …***…
] Product Category IV shall always be sold as a seasoning
blend and shall in no event be sold as [ …***…
] ; (ii) [ …***… ] Products in
[ …***… ] Product Category V shall in no
event be sold as [ …***… ] ; and (iii)
[ …***… ] Products in [
…***… ] Product Category VI shall in no event be
sold as [ …***… ] .”
9.
A new Section 7.6.1.1 is hereby added to the First Collaboration
Agreement as follows:
“7.6.1.1 Minimum Royalty
Amount for North American Territory . For the period
commencing on [ …***… ] and ending on
[ …***… ] (“Initial North American
Minimum Royalty Period”), Ajinomoto shall pay to Senomyx
a
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minimum royalty for the North American
Territory (“Initial North American Minimum Royalty”)
based on the following schedule:
|
Date of Accrual
|
|
Amount of Payment
|
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|
[...***...]
|
|
[...***...]
|
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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[...***...]
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Aggregate Initial
North American
Minimum
Royalties:
|
|
[...***...]
|
|
Payments under this Section 7.6.1.1 are
non-refundable and shall be due within [
…***… ] of the date of accrual. Payment of
the above installments shall be the only royalties due for the
North American Territory dur
